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Friday, October 21, 2011

Clinical Negligence Claims: The threat posed by reform

The Law Society recently published a response to the much heralded No win No fee "reforms" being forced through by the Ministry of Justice (MOJ). One of the more worrying aspects of the proposed reforms is the suggestion that legal aid will no longer be allowed for any clinical negligence cases. This puts the clinical claims in the same bracket as general personal injury cases, which as any self respecting injury lawyer will tell you, is completely wrong. The two areas are incomparable in terms of the complexities and investment of time / energy / cost.

The Law Society have fought back with a rigid counter lobbying exercise which will focus on the following:

o Government proposals to remove CN claims from the scope of legal aid conflicts with the views of Jackson LJ that there should be no further cutbacks in availability/eligibility

o The possibility that legal aid may still be available to fund ATE premiums in CN claims is likely to be unworkable/uneconomical in practice due to the cost of premiums as there is a high failure rate in such claims

o As CN claims involve much higher risk many lower value CN claims may become uneconomical to pursue

o Many seriously injured CN victims will lose up to 25% of their damages under the non-recoverability rule which could result in more victims having to rely on state benefits

o Up to 40% of CN claims fail and in many cases the NHSLA recovers its own costs – this will not happen under QOCS

o The increase of 10% in damages across the board coupled with QOCS could result in higher outlay for the NHS

We shall wait and see how things turn out but there are likely to be more losers than winners when legal aid is finally pulled for medical negligence related claims.